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Sue Your Boss and Still Show Up for Work? The Ellen Pao Story

Forbes—Susan Adams

A provocative story on BusinessInsider today points out that Ellen Pao, who filed a gender discrimination suit against her bosses at Kleiner Perkins Caufield & Byers on May 10, is still showing up for work at the blue chip Silicon Valley venture capital firm. The piece calls Pao’s decision to keep working “awkward,” and notes that she recently attended a Kleiner Perkins party for clients at Resposado, a Mexican restaurant in Palo Alto, where a Reuters account describes how other Kleiner Perkins partners “clutched their drinks and steered clear of their suddenly famous colleague.”

Pao hasn’t spoken to the press about the suit. Her lawyers at San Francisco’s Rudy Exelrod Zieff & Lowe LLP are also not commenting. Kleiner Perkins posted a personal note from top partner John Doerr on its website, that says the firm hired a private investigator to probe Pao’s claim and found that her suit is “without merit.”

On Monday, Pao made her first public statement about the suit, on the question-and-answer website Quora. An anonymous user asked, “Did Ellen Pao quit KPCB after the lawsuit?” Pao wrote a short response: “No, and I don’t plan to quit.”

Anne Golden, a partner at the plaintiff-side employment law firm Outten & Golden in New York City, says Pao is in a tough position, and that it makes sense for her to keep going to work, if Pao can handle it emotionally. Her case could be weakened if she left the firm, because it would be more difficult for her to argue that she lost income and benefits as a result of the harassment.

The only way resignation can work in a sexual harassment plaintiff’s favor is if she can prove that the conditions at her workplace have become so onerous, she has been “constructively discharged,” explains Golden. In other words, she would have to show that her bosses were treating her so badly, any reasonable person would find the conditions impossible to tolerate. An example would be if she worked on a factory floor and were subject to daily groping by superiors or colleagues, or if a superior threatened that if she didn’t engage in a sexual relationship, she would be let go. Short of such blatant behavior or an actual firing, it is tough for sexual harassment plaintiffs to argue that alleged harassment has cost them income and benefits, explains Golden.

Golden points out that Pao could leave for another job, if she can find one, but again, her damage claim would be greatly reduced because defense lawyers could argue that she left by choice, and gave up the lost wages voluntarily.

Daniel O’Meara, chairman of the employment law department of Montgomery McCracken Walker & Rhoads, a Philadelphia-based firm that represents employers, points out that if Pao is interested in settling, she is in a much stronger position if she stays at Kleiner Perkins. As awkward as it may be for her to work beside her alleged harassers, O’Meara observes, it is also tough for them to work with her. “They are going to want to pay her to get out of there,” says O’Meara. Staying “enhances her bargaining power,” he adds.

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Golden says she has represented a number of clients who stayed with their employers while they were suing, but that the plaintiffs usually find it tough because colleagues and superiors tend to isolate them and continue to retaliate.  While it’s almost always better for the plaintiff’s case if she can stay on the job, Golden says she sometimes advises her clients that their emotional well-being is more valuable than any potential damages. “I sometimes tell my clients that their life is more important than their case.”

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